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15.3 Conduct of the Investigation
The investigation of the factual circumstances allegedly giving rise to an injury or disease is perhaps the most critical phase of the determination of liability.
Of course, many cases are very simple and straightforward and involve simple injuries clearly documented in accident reports and on the employee's ADF medical file. These raise few issues with regard to causation.
Nevertheless, a high percentage of RCG cases involve old injuries with deficient documentation or those where the issues generally are less clear cut. The actual work of inquiry for those more ambiguous cases is very diverse and takes a different form to suit the features of each individual case. Few invariable rules or step-by-step procedures can be specified by this Handbook, as it is the individual Delegate who must be satisfied as to the merits of the individual case. Delegates are expected to apply judgement, discretion and reason when considering the significance of the matters placed before them, (or alternatively, facts uncovered by their own inquiries) and to apply the 'balance of probabilities' test correctly.
Delegates should also refer once again to 'the manner in which claims are to be determined...'
Nevertheless, the following general principles and guidelines can be given:
- Client assertion can be sufficient, subject to the totality of the evidence
A contention that an injury or a disease has an employment related origin should be supported by evidence.
A client’s contention (including where not contained in a statutory declaration) is a form of evidence that can be taken into account. In the absence of contradictory evidence being available to the Department, and provided a contention is credible and matches the records available, a contention can generally be considered favourably. Claims assessors should view a contention within the context of the totality of the evidence available to the Department to see if a contention is supported or contradicted.
While contemporaneous, independent evidence may be highly desirable, the legislation does not explicitly require additional corroborative evidence to establish a causal link between the claimed condition and the claimant’s period of service.
The legislation requires that the decision maker is satisfied, on the balance of probabilities. On this basis, it is open to the decision maker to accept a contention, taking into consideration all the available evidence. If the evidence available to the Department is sufficient to satisfy the claim assessor to the requisite standard, then a claim may be accepted. If the assessor is not satisfied then further evidence may be requested.
This does not mean that contradictory evidence can be disregarded and does not restrict the decision maker in seeking additional evidence, including independent corroborating evidence, if required to fulfil the legislative requirements.
The examples below are provided for illustrative purposes only. Claims assessors will need to determine the evidence required to meet the balance of probabilities to their satisfaction on a case by case basis.
A client claims for PTSD arising from witnessing a training accident. In the claim, the client provides their service record, a diagnosis from a treating psychiatrist stating the PTSD arose from the incident and statements of support from other members of their unit confirming that the member was present and witnessed the accident.
In such a case, if the claim is detailed, matches known conditions and periods of service and is plausible given the information presented, a delegate may consider that there is already sufficient evidence to determine on the balance of probabilities that the incident occurred as described and contributed to their medical condition.
If there is further doubt (such as about plausibility of the details of the accident for example), verification of the details of the accident and units present may be sought from Defence or other sources.
A client claims for depression arising from harassment in service. A diagnosis is provided indicating causation along with a statutory declaration testifying to the nature, location and impacts of the harassment incidents.
Depending on nature of the evidence provided and available, given that there may be sufficient internal evidence contained in a signed statutory declaration or further information (such as a record of an internal investigation) on the veteran’s file, the delegate may in this case be satisfied that there is sufficient evidence to meet the balance of probabilities. Alternatively, if the statutory declaration is not detailed or the files available to the Department do not contain sufficient information, it would be open to the delegate to seek additional evidence if required.
A client claims for a sprained ankle as a result of a training accident. There is a diagnosis, but the claim contains no detail around the circumstances of the accident. No further information is provided. In this case, seeking further evidence would be reasonable to verify the circumstances of the accident to ensure it occurred as a result of service.
- Sworn statements by independent witnesses are however acceptable
Circumstances and events alleged by claimants should preferably be verified by documents contemporary with the events. Failing that, statutory declarations given by witnesses at a later time – i.e. even with the claim – may possibly be satisfactory, but depending entirely on the Delegate's discretion and opinion as to the weight to be given to those declarations.
- ADF documents contemporary with the injury etc should be regarded as the most persuasive evidence.
These documents include (but are not limited to) incident and accident reports, clinical notes and reports from ADF medical files, ADF Unit memoranda correspondence and/or Standing or Routine Orders, etc.
- Late incident reports to be closely scrutinised and verified.
Cases have occurred where, although an incident report form does indeed exist, the ADF member did not submit it at the time of the alleged injury but only some years later, perhaps only at the time of submitting the compensation claim. These documents should only be given any weight when the supervisor signing to corroborate the factual nature of the report, was also the responsible supervisor at the time of the alleged injury.
- A record of treatment by ADF Health does NOT automatically establish a work nexus.
Delegates should recall that the ADF Medical Service is obliged to treat all of the employee's medical conditions whilst serving, i.e. no matter how those conditions arose. Discovery of a treatment record for the claimed condition on the employee's ADF medical file therefore merely establishes that the condition was present during the period of ADF employment, but does not necessarily establish that the condition is attributable to that service.
- On the other hand, ADF medical records sometimes do attribute cause
or at least discuss the broad circumstances of an injury. For instance a note originated by an ADF hospital that 'admit this AM after fall from climbing net at PT, # L tibia' would certainly establish the nexus with employment for this broken leg. Also, a medical note reporting the member's recollection (for the purposes of treatment) of an earlier injury may also have some evidential value i.e. 'badly infected finger – cut on night exercise 1/52 ago, did not seek immediate aid'.
- Retrieval of the relevant contemporary medical records
Delegates should make their requests for copies of such documents via DOCTRACKER to the SAM team located in Canberra.
- Clients suspected of withholding documents inconsistent with the claim
In a limited number of cases where a claimant supplies copies of Defence medical records relating to a medical condition, Delegates may nevertheless suspect from other cues, that not all of the evidence has been released by the claimant. In those circumstances, the Delegate should not hesitate to apply for copies directly via the SAM team.
- Confirmation of the member's presence at the Maralinga/Monte Bello
Nuclear tests in the 1950s can be accomplished simply by means of a nominal roll. Details of the employee's role and radiation dose can be sought from the Policy area.
- Navy members involved in the Melbourne/Voyager and Melbourne/Evans collisions
Are also listed on a nominal roll. Procedures for dealing with these claims are in MCRI 6.
- Details of ADF member's service,
i.e. postings, physical location, rank and ratings, 'mustering' or ECN etc., disciplinary history, grievance appeals and other career details can be sought by Delegates from Defence via the DVA SAM Team (through Docktracker).
- Unit records
For many assertions on more detailed matters i.e. rostering at a particular time/place, approval to play with civilian sports teams, use of chemicals etc. the only source may be the member's unit or ship at the time of the alleged injury. However, experience has demonstrated that in most cases clear answers may not be forthcoming from a unit, following five years after an event. The dissipation of group memory because of the posting cycle and the turnover of ephemeral records (rosters, standing orders etc.) means that the work unit is not always a reliable source of information over the long term.
- Investigations of complex events or alleged sensitive (secret) circumstances
Delegates will sometimes face complex and unresolved assertions about unusual circumstances and/or duties, the nature of service, presence a — t significant events not otherwise recorded, ADF procedures and/or contact with substances etc. Matters such as these and issues such as the outcome of formal Defence inquiries etc., may seek clarification from the Directorate of Entitlements, in the Department of Defence. Personnel from this Directorate have, in the past, been able to research quite specific matters. Requests to the Directorate of Entitlements are to be sent via a DOCTRACKER request to SAM..
- The medical opinion of a relevant specialist is the other major source of information relating to the nexus between a medical condition and ADF service
This opinion about causation is usually, though not invariably, sought in conjunction with an opinion about the true diagnosis of the claim. Specialist medical opinion ('SMR') is sought mainly in cases of disease. Alternatively it may be arranged (e.g.) where the other evidence in support of an injury is not compelling enough on its own to concede the case on the basis of existing documents. Arranging and interpreting medical reports is dealt with in more detail at section 11.
- Delegates should regard medical reports as having an advisory character
and an opinion only (albeit an expert opinion). While Delegates are not, of course, qualified to propose a contrary medical opinion, Delegates are entitled to give a relatively low weight to an opinion proposed by a sub standard report.